Sample of one of my appellate brief's, part seven.
STATEMENT OF FACTS
Appellant had initially been charged of the offense of Speeding by way of being served with a simplified traffic information Summons # LV 2795984. Trial was set for October 31, 2006 at 9:00 am. Prior to trial, Justice Davis dismissed said summons for the issuing officer’s failure to provide a supporting deposition. (see Trial Transcript p.2., lines 22-24 wherein Justice Davis states: “What that means is because you requested a supporting deposition – there was a case today, I dismissed it.”) Appellant was then served and subsequently convicted based on the “long form” accusatory instrument, which, as the record reflects, the Court served on Appellant moments before trial.
ARGUMENT
Notwithstanding the general rule that a dismissal for a failure to provide a supporting deposition is a dismissal without prejudice, the subsequent refilling of charges by way of a “long form” information, in fact causes an abrogation of at least “the spirit”, if not the “the letter” of Criminal Procedure law, and is thus improper.
In the seminal case on this issue People v. Aucello, (146 Misc.2d 417 (1990), 558 N.Y.S.2d 436) the appellant had requested a supporting deposition and none was timely provided. Defense counsel subsequently made a motion to dismiss, which was later granted. Subsequently, the trial court directed the officer to re-serve the untimely deposition together with a copy of the original traffic ticket bearing an amended trial date. The Court in Aucello held that, absent special circumstances, a trial court “abused its discretion when it permitted appellant to be tried based upon the new simplified information and supporting deposition.”
Under a fact pattern similar to the case at bar, the court in People v. Rosenfeld 626 (N.Y.S.2d 352, 163 Misc.2d 982 (N.Y.Sup., 1994) ruled that “Such actions, [i.e., allowing the officer to reissue a previously dismissed traffic information] in this court's opinion, defeat the very purpose of the CPL, disregard the interests of judicial economy and, often times, render the defense of traffic matters impracticable.”
Thus, in consideration of the aforementioned, the officer’s subsequent filing of the “long form” instrument for the speeding charge was improper and the speeding charge should be dismissed with prejudice.
FIFTH QUESTION PRESENTED
Whether the Court erred by convicting the appellant based on testimony, which lacked the weight and sufficiency to sustain a conviction. |
